CHIMMAN LAL Vs. SYED ZAHUR UDDIN

JUDGEMENT

(1.) This is a Letters Patent Appeal by Chimman Lal and certain other Hindus of Bareilly City, plaintiffs, whose suit has been dismissed by a learned single Judge of this Court. The plaintiffs brought a suit on the allegations in para. 10 of the plaint that there was a pucca well known as "Chah Sheran" and pucca steps and some land on the four sides of the well appurtenant thereto and some trees in Bareilly City entered in the village papers of Qasba Hafizpur as a public wakf property, and that the Hindus had acquired rights of easement in the property, asking that an injunction should be issued against the defendant to restrain him from interfering with the general public taking water from this well and the general public using the land appurtenant to the well as a resting place at certain Hindu and Mahomedan fairs. The defence was that the Municipal Board of Bareilly had been in possession of the well and land for more than 50 years and had made a sale deed of the property in question to the defendant. The facts were that the Municipal Board had acquired some land for a site of a school from the defendant Syed Zahuruddin, and they gave him a sum of money in payment and a transfer of this well and the adjoining land as part of the consideration. On receiving this sale deed dated 9th June 1931 the defendant began to exclude the public from the property. The trial Court decided in favour of the plaintiffs. The defendant appealed to the lower Appellate Court and failed to appear although he was given several opportunities and the lower Appellate Court decided the appeal on the merits in the presence of the respondents-plaintiffs. The lower Appellate Court confirmed the findings of the trial Court. Those findings were: It is satisfactorily proved from the oral and documentary evidence that the land in suit belonged to one Imamuddin Ashraf, which is entered as parti qadim in the old settlement. The plaintiffs witnesses proved that the land was given by Imamuddin Ashraf to Chhatu Bhagat, who constructed the well in question with ornamental carvings and lion statues. The mortgage deeds, Exs. 2 and 3 of 1888 and 1890, show clearly that the well in suit was built by Chhatu Bhagat. The defendant could not show any title deed of the Municipal Board relating to the land. From 1922 the Board began to record the land in its own name. This is no evidence of title.... For the defendant reliance was placed on Section 116, Municipalities Act. It does not confer any title on the Board, because the land was already a dedicated property.... It is satisfactorily proved not only by plaintiff's evidence but also from the defendant's own evidence that the land and well were being used by the public, Hindus and Muslims, at the time of various fairs such as Nekpur, Naryawal, Madar (Muslim fair), Dasehra, etc. Under the circumstances there can be no question of adverse possession by the Board, who was acting or managing merely as a trustee. Fart of the land was sometimes let out by the Board to vegetable vendors, through a thekadar. Such use of open land cannot amount to adverse possession, and did not in any way interfere with the public right of holding fairs and user of the land and the well. I hold that the land was a wakf property and was dedicated to the public and that the Municipal Board was not owner of the land and that the suit is not time-barred.

(2.) Now, when the case came before the learned single Judge, the Judge states: It was argued by Dr. Katju on behalf of the appellant that accepting the findings of the lower Courts the plaintiff had no case.

(3.) The learned Judge sets out those findings but he does not state clearly the finding that the land was wakf property and dedicated to the public. He has apparently only considered the finding that there was a customary right of easement of the public in the land as well as for the use of the well. We consider that the findings of the lower Appellate Court go beyond this point and clearly set out that the land was dedicated property for the use of the public and therefore was trust property and wakf. The position in our opinion would be somewhat different if the rights of the public in the property were merely those taken by the learned single Judge as a right of easement in the land and the well. The learned single Judge proceeded to treat the land as land in which there was a customary right of the public and he considered that under Section 116(b), United Provinces Municipalities Act of 1916 the property in question, that is the public well and the adjacent land appurtenant to it, was property which "vested in and belonged to the Board." Further he held that as the property had vested in the Board it could be subject of sale by the Board under Section 124(1). In regard to the question of trust he merely stated: It cannot be said that the well and land in dispute was held by the Board in trust inasmuch as no trust was created.